2.
The civil law defines it to be a gift under apprehension of death; as,
when any thing is given upon condition that if the donor dies, the donee
shall possess it absolutely, or return it if the donor should survive,
or should repent of having made the gift, or if the donee should die
before the donor. 1 Miles' Rep. 109-117.
3.
Donations mortis causa, are now reduced, as far as possible, to the
similitude of legacies. Inst. t. 7, De Donationibus. See 2 Ves. jr. 119;
Smith v. Casen, mentioned by the reporter at the end of Drury v. Smith,
1 P. Wms. 406; 2 Ves. sen. 434; 3 Binn. 866.
4.
With respect to the nature of a donatio mortis causa, this kind of gift
so far resembles a legacy, that it is ambulatory and incomplete during
the donor's life; it is, therefore, revocable by him; 7 Taunt. 231; 3
Binn. 366 and subject to his debts upon a deficiency of assets. 1 P.
Wms. 405. But in the following particulars it differs from a legacy: it
does riot fall within an administration, nor require any act in the
executors to perfect a title in the donee. Rop. Leg. 26.
5.
The following circumstances are required to constitute a good donatio
mortis causa. 1st. That the thing given be personal property; .3 Binn.
370 a bond; 3 Binn. 370; 3 Madd. R. 184; bank notes; 2 Bro. C. C. 612;
and a check offered for payment during the life of the donor, will be so
considered. 4 Bro. C. C. 286.
6.
- 2d. That the gift be made by the donor in peril of death, and to take
effect only in case the giver die. 3 Binn. 370 4 Burn's Ecc. Law, 110.
7.
- 3d. That there be an actual delivery of the subject to, or for the
donee, in cases where such delivery can be made. 3 Binn. 370; 2 Ves. jr.
120. See 9 Ves. 1 , 7 Taunt. 224. But such delivery can be made to a
third person for the use of the donee. 3 Binn. 370:
8.
It is an unsettled question whether such kind of gift appearing in
writing, without delivery of the subject, can be supported. 2 Ves. jr.
120. By the Roman and civil law, a gift mortis causa might be made in
writing. Dig. lib. 39, t. 6, 1. 28 2 Ves. sen. 440 1 Ves. sen. 314.
9.
In Louisiana, no disposition mortis causa, otherwise than by last will
and testament, is allowed. Civ. Code, art. 1563. See, in general, 1
Fonb. Tr. Eq. 288, n. (p); Coop. Just. 474, 492; Civ. Code of Lo. B. 3,
2, c. 1 and 6. Vin. Abr. Executors, Z 4; Bac. Abr. Legacies, A; Supp. to
Ves. jr. vol. 1, p. 143, 170; vol. 2, 97. 215; Rop. Leg: oh. 1; Swinb.
pt. 1, s. 7 1 Miles, 109. &c.
DONATION,
contracts. The act by which the owner of a thing, voluntarily transfers
the title and possession of the same, from himself to another person,
without any consideration; a gift. (q. v.)
2.
A donation is never perfected until it is has been accepted, for the
acceptance (q. v.) is requisite to make the donation complete. Vide
Assent, and Ayl. Pand. tit. 9 Clef des Lois Rom. h. t.
DONATION INTER Vivos,
contracts. A contract which takes place by the mutual consent, of the
giver, who divests himself of the thing given in order to transmit the
title of it to the donee gratuitously, and the donee, who accepts the
thing and acquires a legal title to it.
2.
This donation takes place when the giver is not in any immediate
apprehension of death, which distinguishes it from a donatio mortis
causa. (q. v.) 1 Bouv. Inst. n. 712. And see Civ. Code of Lo. art. 1453
Justin. Inst. lib. 2, tit. 7, §2 Coop. Justin. notes 474-5 Johns. Dig.
N. Y. Rep. tit. Gift.
DONEE.
He to whom a gift is made, or a bequest given; one who is invested with
a power to select an appointee, he is sometimes called an appointer.
DONIS, STATUTE DE. The stat. West. 2, namely, 13 Edw. I. , c. 1, called
the statute de donis conditionalibus. This statute revives, in some
sort, the ancient feudal restraints, which were originally laid on
alienations. 2 Bl. Com. 12.
DONOR. He who makes a gift. (q. v.)
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